Respecting Military Reconstruction

Gerard N. Magliocca

The Trump case will probably force the Court to confront the meaning of Military Reconstruction. Section Three was the only part of the Fourteenth Amendment that was incorporated into the Military Reconstruction Acts. Section Three was also interpreted by the Attorney General in 1867 and implemented by Union Army commanders in the South. After ratification in 1868, the Army enforced Section Three in the states that remained unreconstructed.

The briefs in support of Donald Trump ignore or downplay these facts. For example, many of them claim that Section Three cannot be enforced without an Act of Congress. But Section Three was enforced in Virginia by the Army before any Act of Congress so provided. Some of the briefs also claim that Section Three cannot be applied to candidates. But in Virginia and Georgia military commanders did hold that Section Three rendered people ineligible candidates for state legislative elections. (The Amir brief makes this point with respect to Virginia.)

Why are these precedents being disregarded? One possibility is that the Dunning school of Reconstruction history taught people that Military Reconstruction was tyrannical. Thus, all of the precedents from that period are unreliable. Even if you don't take that view, you still might think that military actions are not the equivalent of court actions. Army decisions were lawless and court actions were lawful.

But Section Three belies that second argument. The text emphatically asserts the equivalence of the constitutional oath taken by civil and military officials. The Constitution is equally binding on both. And in many ways, Union Army commanders were far more faithful to the Fourteenth Amendment than civil officials. Ron Chernow's biography of Grant makes this point over and over again. The generals saw the carnage of the Civil War up close and were determined that the dead shall not have died in vain.